Hickey v. Stone

Citations

• 60 Ill. 458

Syllabus

<p>1. Pbacticb in chancery — affidavit. Where, in a suit for an injunction, there appeared in the record an affidavit- of the defendant denying the allegations of the hill upon which the injunction was sought, hut the affidavit appeared to have been filed on the day the writ of injunction was awarded, it was held, that the practice in this State did not admit of such an affidavit, made out of court, to be tliu^ brought into the record, and such affidavit had no such place in the record as to entitle it to consideration by this court.</p> <p>2. Same — motion to dismiss the bill — and herein of the office of a demurrer. In chancery, a motion to dismiss the bill has the effect of a demurrer to the bill for want of equity, and such a motion may be regarded as an oral demurrer.</p> <p>3. The office of a demurrer in chancery is to bring the merits of the case before the court. It admits all the facts well pleaded,.and asks the judgment of the court, if, upon the facts so admitted, the complainant is entitled to the relief he asks or to have the matters of the bill adjudged in his favor.</p> <p>4. The same is the office of a motion to dismiss. It admits the facts alleged in the bill and calls for the judgment of the court upon them.</p> <p>5. The defendant in an execution issued on a judgment at law obtained against him, filed abill against the plaintiff in the action at law, who had control of the execution, and the officer in -whose hands the execution had been placed, to enjoin proceedings under it. The injunction was granted on the allegations that complainant was not indebted to the plaintiff in the action at law, nor was he under any legal liability to him; that no summons or other process was ever served upon him to appear and answer to the action, nor did he know that an action was pending against him at the suit of such parly, which, if he had known, he would have appeared and defended ; that the first intimation he had of the suit was the execution in the hands o